Mat. Appeal No.989 of 2015

13th July, 2016.

Petitioner Counsel: Sri. A.N. SATHISH KUMAR
Respondent Counsel: Sri. M. PREMCHAND

JUDGMENT

Anil K. Narendran, J. :- The appellant is the respondent in O.P.No.2251 of 2012 on the file of the Family Court, Thrissur, a petition filed by the respondent herein for a decree of restitution of conjugal rights. On receipt of notice, the appellant entered appearance and filed her objections in the said O.P. But, she failed to appear before the Family Court on the subsequent posting dates and as such, she was set ex parte. The respondent herein filed proof affidavit and the Family Court allowed the O.P. by an ex parte order dated 31.07.2014. Paragraphs 4 and 5 and the operative portion of the said order read thus;

"4. The petitioner filed affidavit in support of the averments in the petition.

5. From the evidence, averments in the petition are proved.

In the result, the petition is allowed as follows; The respondent is directed to come and reside with the petitioner within one month from the date of decree. If she fails to obey the decree, the petitioner will be entitled to get it executed through court."

2. Feeling aggrieved by the ex parte decree of the Family Court in O.P.No.2251 of 2012 the appellant is before this Court in this appeal.

3. This appeal was filed with a delay of 335 days. By a separate order passed on this date we have condoned the delay in filing the appeal.

4. Since the only issue that arises for consideration in this appeal is as to whether the appellant has made out a case to set aside the ex parte decree passed by the Family Court, the learned counsel for both the parties have agreed that the appeal itself can be finally heard and disposed of.

5. Heard the arguments of the learned counsel for the appellant and also the learned counsel for the respondent.

6. The pleadings and materials on record would show that, the marriage between the appellant and the respondent was solemnised on 01.01.2012. After the marriage, they resided together as husband and wife and a female child was also borne in the said wedlock. Alleging that the appellant had withdrawn from the company of the respondent without any valid cause, the respondent herein has approached the Family Court in O.P. No.2251 of 2012 seeking a decree of restitution of conjugal rights. Though the appellant entered appearance before the Family Court and filed objection, she could not appear on the subsequent posting dates. As such, she was set ex parte and the Family Court passed an ex parte decree for restitution of conjugal rights.

7. The appellant would contend that she was not afforded with a reasonable opportunity before the Family Court to contest the matter by adducing evidence. However, the specific reason for her non-appearance in court after filing her objections in the O.P. has not been disclosed either in the memorandum of appeal or in the affidavit accompanying I.A.No.3543 of 2015 filed seeking an order of stay of the execution of the ex parte decree passed by the Family Court. The only contention raised in the memorandum of appeal is that, the appellant has no means of livelihood and she and her child are totally depending on her parents for their livelihood. In the memorandum of appeal the appellant would also state reasons for leaving her matrimonial home. We express no opinion on the said contentions raised by the appellant and it is for her to substantiate such contentions before the Family Court by adducing cogent and convincing evidence.

8. Section 9 of the Hindu Marriage Act, 1955 deals with restitution of conjugal rights. As per Section 9 of the Act, when either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Going by the Explanation to Section 9, where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

9. The essence of a decree for restitution of conjugal rights is that, either the husband or the wife desiring the company of his/her spouse makes an effort through the court to restore his/her conjugal rights. The mode of enforcement of a decree for restitution of conjugal rights is provided under Rules 32 and 33 of Order XXI of the Code of Civil Procedure, 1908. As per sub-rule (1) of Rule 32, where the party against whom a decree for restitution of conjugal rights has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it, the decree may be enforced by the attachment of his property. Going by sub-rule (3) of Rule 32, where any such attachment under sub-rule (1) of Rule 32 has remained in force for six months, if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and out of the proceeds the court may award to the decree-holder such compensation as it thinks fit, and shall pay the balance, if any, to the judgment-debtor on his application. Rule 33 deals with the discretion of the court in executing a decree for restitution of conjugal rights.

10. The provisions under Rules 32 and 33 of Order XXI of the Code of Civil Procedure therefore provides for enforcement of a decree for restitution of conjugal rights only to the extent indicated therein. Therefore, on the strength of the decree for restitution of conjugal rights obtained by either the husband or the wife, his/her spouse cannot be compelled to restore conjugal rights or to resume cohabitation, unless and until he/she is willing for such restoration or resumption. However, it has to be noticed that, as per clause (ii) of sub-rule (1A) of Section 13 of the Hindu Marriage Act, a petition for dissolution of marriage by a decree of divorce could be maintained on the ground that there has been no resumption of cohabitation between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceedings to which they were parties. Therefore, the provisions under Section 9 of the Hindu Marriage Act for restitution of conjugal rights cannot be allowed to be misused by either the husband or the wife, as the case may be, whose request for restitution of conjugal rights was merely a pretence and sham, and intended for an extraneous purpose of securing a decree for divorce invoking clause (ii) of sub-rule (1A) of Section 13 of the said Act.

11. Therefore, it is incumbent on the petitioning husband or wife, as the case may be, to satisfy the court about his/her sincerity in wanting to resume cohabitation with his/her spouse. This is more so, since clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act mandates that, in any proceeding under the said Act, whether defended or not, the court shall decree the relief only if the court is satisfied that any of the grounds for granting the relief exists and the petitioner, except in cases where the relief is sought by him or her on the ground specified in sub-clause (a), sub-clause (b) or sub-clause (c) of clause (ii) of Section 5, is not in any way taking advantage of his or her own wrong or disability for the purposes of such relief.

12. In the instant case, a reading of the impugned order (which we have already extracted hereinbefore) would show that, the Family Court passed the ex parte decree for restitution of conjugal rights, merely accepting the proof affidavit filed by the respondent herein, even without recording the satisfaction of the court in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act.

13. In that view of the matter, the ex parte decree for restitution of conjugal right passed by the Family Court cannot be sustained in law. Though the appellant has not offered specific reason for her non-appearance in court after filing her objections in the O.P., considering the totality of the facts and circumstances of the case and also the fact that the Family Court passed the ex parte decree merely accepting the proof affidavit filed by the respondent herein, even without recording its satisfaction in terms of clause (a) to sub-section (1) of Section 23 of the Hindu Marriage Act, this appeal is disposed of by setting aside the ex parte order passed by the Family Court on 31.07.2014 in O.P.No.2251 of 2012, on the appellant depositing a cost of Rs.3,000/- before the Family Court, within one month from the date of receipt of a certified copy of this judgment, for payment to the respondent herein. On such deposit being made, the Family Court shall proceed with O.P.No.2251 of 2012 and dispose of the matter finally, as expeditiously as possible, at any rate within four months from the date of such deposit, after affording both the sides an opportunity to adduce evidence.

It is made clear that, we have not expressed anything touching the merits of the issues between the parties and all such issues are left open to be urged before the Family Court.

Ordered accordingly.